JUDGMENT :

Heard Mr. P.J. Saikia, learned counsel for the petitioner and also heard Ms. S. H. Bora, learned Addition Public Prosecutor for the State of Assam.

2. This appeal has been preferred under Section 374 of the Code of the Criminal Procedure, 1973, against the judgment and order dated 22.01.2019 passed by the learned Sessions Judge, Morigaon in connection with Sessions Case No. 46/2013, whereby, the accused/appellant was convicted under Section 304 Part-II IPC and sentenced him to undergo rigorous imprisonment for 7 years.

3. The brief facts of the case is that one Gopal Chandra Bora lodged an FIR on 28.09.2010, stating inter-alia, that on 27.09.2010, at about 8 p.m. in the evening hour his brother Narayan Saikia went to the house of Hari Bordoloi situated at Belaguri village. When his brother was sitting at the varanda of Hari Bordoloi’s house, the appellant Niren Bordoloi attacked him with a dao causing grievous injuries on his person as a result of which he died on the spot. At that time Hari Bordoloi was standing nearby and helped the assailant to assault the victim.

4. On receipt of the complaint, a case was registered vide Dharamtul P.S. Case No. 70/2010 under Section 302/34 IPC and the investigation was initiated. During investigation, the Investigating Officer visited the place of occurrence, recorded the statement of the witnesses, inquest was done on the dead body of the deceased and subsequently, the dead body was sent for post-mortem examination. After completion of investigation charge-sheet was submitted before the Court of learned Additional Chief Judicial Magistrate, Morigaon against the accused/appellants Niren Bordoloi and Hari Bordoloi under Sections 302/34 IPC. As the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the Case was committed accordingly.

5. During the course of trial, Charge was framed under Sections 302/34 IPC to which the accused/appellant pleaded not guilty and claimed to be tried. The prosecution examined 12(twelve) witnesses and exhibited some documents and one material exhibit vide Material Exhibit-1, the seized dao. It is pertinent to mention here that during trial one of the accused Hari Bordoloi died and on receipt of the report from the Executing Officer regarding his death, the case against Hari Bordoloi was abated. Due to death of the co-accused, the trial court was proceeded with the accused/appellant. After completion of trial, statement of the appellant/accused was recorded under Section 313 Cr.P.C, wherein the incriminating materials found in the evidence of the witnesses were put to him to which he denied the same and pleaded his innocence. After hearing the argument advanced by the learned counsel for the parties, the learned trial Court convicted the accused/appellant as aforesaid. Hence, this appeal.

6. It is submitted by the learned counsel for the appellant that there are lots of contradictions in the statement of the witnesses as such the judgment of trial Court cannot be taken into consideration against the accused/appellant that he had committed the crime. Though the prosecution has projected PW-2 & PW-10 as eye witnesses to the incident, but PW-2 though stated that he had seen the incident but subsequently, when he was re-examined, he has resiled from his earlier statement. According to the learned counsel for the appellant, PW-10 is the daughter of Hari Bordoloi who was one of the accused in the case but he died during the trial. PW-10 implicated the present appellant to be involved in the commission of crime which she did not state before the Investigating Officer, while her statement was recorded under Section 161 Cr.P.C, as such her statement is not convincing to convict the accused/appellant.

7. It is also the submission of the learned counsel for the appellant that the evidence of the Medical Officer is not reliable on the basis of which the appellant was convicted as because the Medical Officer has admitted in his evidence that to